IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 3*") DAY OF' DECEMBER 2010 PRESENT THE HON'BLE MR. JUSTICE AJIT J GUN.jAE'A:' AND THE HONBLE MRSJUSTICE B;';V.1\?AGAR1\Ai\¥iN}; R.F.A.NO. 139V8~.Dtji?i2o0:;. A BETWEEN 1.
‘*._(Ex§; ‘SR1.I§_B.IAf§AYANA, ADV.)
NELLAMAKKADA P. UTIiA1AI~I– L A I
@ VITTALA V ” ._ I ‘
AGED 42 YEARS.’
NEL1AIv£AI{K1’%DA”P,.=POQNACH;A….
@SURESH_ _ «
AGED “3_8″YEARs .f -~ I V ~
BOTH sQN’s%o1«’v.N’.E00vA1AE’1
RESIDING AT ,KAvAI3_E’ VILLAGE
VIRAJPET T’A_w:s; ‘ ‘
KQDAGTU DISTRICT. _
“”” ” …APPELLANTS
A1.
M;.I{.A’P:l3.AJ”I’
FATHEF’g’S NAME NOT KNOWN
MAJOR.
‘I.M’A’CHIMADA CHINNAPPA
DORAI
S/O NANAIAH
MAJOR.
BOTH RESIDING AT
KARMADU VILLAGE
VIRAJPET TALUK
” {.::D«o’t}ieyl.ll”prove that the suit is not
plaintiffs entitled to the reliefs
{iv} [)0 they prove that their possession”-,y
was interfered with by the defendants’?
[V] DO they prove that subsequenidtio
suit in O.S.N0.8:G/94.Adefe11:da.utg’–f2 L”
encroached upon 5%. ‘cent:-3’ll in ‘ ” A . ii’.
property?
(vi) Do the deA_fendanrt–slll:p1*0VeyA that’tvh.e..s§uit
schedule lp«r.C5″p_er’ty is a’*– and parcel
of Sy.N0.2S3_/ l._tliatl’letter a dual
number was gi*Qen'<«as' QI35'?
(vii) 1: T131 defendant is
in adverse’ (_):’f*…:l_’the area
described lparasl’ _.0f the
written statenient? it
(viii) they._’plr0§:::e that the’ ‘s~*–.-at is barred by
time? ” -»
the3f__llpr0Vel’ltlj;at it is bad for non-
joiflder of neeessary parties’?
‘ ‘ -property valued?
“‘ .:prayed for?
(xii) What decree or order’?
fly/a
7′. T he learned Trial Judge, having regardpto the
evidence let in by both the plaintiffs and
was of the View that the plaintiffs have
that the disputed area to an ext’ent'”of 5′,A% t
to them. Consequently, the
answered in negative and if
8. Mr. NarayarI:,’~1earned appearing for the
plaintiffs would subrnit’ the sale
deed of the clearly.d_isctlose that the suit
schedule cents of Sy.No.35,
which purchased. He further
submitsfldthpat. that there is a variance in
the§gbo_undaries’ «8..S__._W€H as in the measurements, that by
‘ disentitle the plaintiffs to get a decree for
ftpolssessiofn.
Mr. Rainbhat, learned counsel appearing for the
‘hdefendants would support the judgment and decree
“passed by the Trial Court. He would submit that after
the sale deed was executed in favour of defendants,
Ex.Pl i.e. registered sale deed dated 25.1.1990 was;
I .
r \
executed. Subsequently, there was a rectification deed,
which is produced at Ex.D20. He submits–___pthat
pursuant to the said rectification deed
only the Sy.No.216/1 is substituted
encroachment and the measurernlent in V
the circumstances, he
recorded by the learned ‘the of’
title cannot be fau1ted;~..__
10. We ‘ogaye g1v’én– ‘consideration to
the submissl1o’na_’:rr?.ade bi/…bot;h:.the counsel.
ii. During’ of trial, we notice that the
plaintiffs ‘ezkarriined three witnesses as I-“Wsi to 3
to lI5llll5lvwere marked. On behalf of the
Witnesses were examined as DWS 1 to
Comrni–s:sioner’s report is marked at Exs.C1 to C3
it {through DW2, the Commissioner appointed by the
l ” ‘Court.
3 to D25 were marked. The
12. We notice that the suit was initially filed in the
/
Court of Civil Judge (Jr. Dn.] at Virajpet, which was %